MORE FIRST AMENDMENT MISUNDERSTANDING

It’s hard to believe that members of Congress don’t have a good enough understanding of the First Amendment to realize the error of this statement:

Freedom of speech, however, is not absolute. It is limited by the legal and moral understanding that speech that causes the incitement of violence or prejudicial action against protected groups is wrong.

As Professor Volokh explains, that statement is pretty far off.  Only speech intended and likely to produce imminent lawless conduct is outside of the protection of the First Amendment.  Whatever “prejudicial action against protected groups” means, I think it would go way beyond imminent lawless conduct.

As an aside, the actual situation discussed in the Professor's post involves a speech by a visitor to the United States, although the Congresspersons didn’t mention that distinction.  The case the Professor cites on the government’s authority to keep visitors out of the country, based on what they intend to say while here, is Kleindienst v. Mandel.  That’s Richard G. Kleindienst, former attorney general of the United States and native of Winslow, Arizona, who I knew personally.  I’ll have to tell more about it sometime.